Human Rights and Environmental Governance Flashcards
What has been the impact of the UDHR?
Regarded as one of the most influential political statements of all time
Provided the basis for subsequent rights protections like the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966)
When and why was the UDHR drawn up?
1948 - it established a series of absolute civil, political and social freedoms that all humans are entitled to enjoy
How have NGOs impacted global human rights?
e.g. Amnesty International, Human Rights Watch, Red Cross, Save the Children
Use the internet to ensure instantaneous coverage of humanitarian crises, putting pressure on the international security to act
HRW publishes its annual ‘World Report’, which catalogues nation-states’ records on human rights - e.g. in 2017, it criticised growing authoritarianism in China, Russia and Turkey
Purpose of the ICC
Established to try individuals for genocide, crimes against humanity, war crimes and crimes of aggression
Strengths of the ICC
International justice
Deterrent effect
Weaknesses of the ICC
‘Anti-African’ bias
Limited jurisdiction
Questionable efficacy
Strengths of the ICC: international justice
Reflects an international standard of rights
Grants procedural rights to victims of genocide, crimes against humanity and war crimes by allowing them the possibility to present their evidence and testimony
Prominent convictions include Thomas Lubanga (a Congolese warlord responsible for atrocities committed against the Lendu ethnic group) and Ahmad al-Mahdi (member of an Islamist terrorist militia convicted for the war crime of attacking religious buildings in Timbuktu)
Strengths of the ICC: deterrent effect
there are some instances where it can be shown the threat of ICC prosecution contributed to a reduction in violence and an increased chance of peace (especially when those crimes are committed by rebel groups as opposed to the government):
Uganda: The issuing of ICC arrest warrants against the leaders of the Lord’s Resistance Army (LRA) Christian terrorist rebel group in 2005 may have contributed in bringing the LRA to the negotiating table with the Ugandan government
Colombia: Since the ICC announced its interest in opening a Colombian investigation in 2006, several paramilitary rebel groups, e.g. Vincente Castrano, the leader of the AUC militia, decided to demobilise and stop fighting
Democratic Republic of Congo: Since the conviction of Thomas Lubanga for his role in the Ituri conflict, local rebel commanders (whilst still operating) have generally not been engaging in indiscriminate violence against civilians, partially driven by a fear of potential ICC prosecution
Kenya: Uhuru Kenyatta, the Kenyan President, was indicted by the ICC in connection with post-election ethnic violence in 2007-8 in which 1,200 people died and 600,000 were displaced. Whilst the ICC was forced to drop charges because Kenyatta (the President) refused to cooperate and share evidence, the following 2013 and 2018 elections were relatively peaceful
It is not tenable to argue that the ICC has completely eliminated war crimes, genocide and crimes against humanity through the ‘deterrent effect’, but the empirical evidence does suggest it has had a dampening effect on the extent or scale of violence.
Weaknesses of the ICC: Anti-African bias
A number of African leaders have accused the ICC being a tool of Western imperialism, only punishing leaders from small, weak states and ignoring crimes committed by the richer, more powerful states
AU urged members not to cooperate w/ ICC - in 2017, Burundi became the first country to withdraw, Kenya is considering withdrawal
Of 44 individuals indicted, all have been African
Weaknesses of the ICC: Limited jurisdiction
Jurisdiction limited to states which have signed and ratified the Rome Statute - 80% of the world does not fall under this jurisdiction
Most of those who have not signed and ratified are those with the worst human rights records
- China (Uyghur concentration camps)
- Israel (occupation of Palestine)
- Russia (illegal invasions)
- Saudi Arabia (execution of atheist, Shia and pro-democracy activists)
- USA (Guantanamo Bay)
ASPA prevents any US soldier being detained by the ICC for trial
Weaknesses of the ICC: questionable efficacy
The ICC does not have its own enforcement mechanisms and therefore requires states or other international agencies to cooperate to arrest the individuals it has indicted. By 2021, the ICC had only secured 8 convictions (one of which was overturned on appeal). Critics claim that the ICC is costly, slow moving and has achieved very little.
Unless a conflict is already ‘over’ and a leader has been overthrown, it is virtually impossible to bring the leader of a state to trial at the ICC
Even if the conflict is over, if it took place in an unstable region like the Democratic Republic of Congo, then it is very easy for war criminals to disappear into ungoverned wilderness
Even if the conflict is over, state leaders may choose not to cooperate with the ICC if they fear that it will damage their political position (e.g. Alassane Ouattara, the Ivorian President, cooperated with the ICC to hand over the former President and his political rival, Laurent Gbagbo; but refused to cooperate when the ICC began investigating his political allies)
Strengths of Special UN tribunals
Holds leaders accountable
Pathway to long-term stability
Weaknesses of Special UN tribunals
Only symbolic justice
Requires state cooperation
Strengths of special UN tribunals: holds leaders to account
Means by which anyone can be punished for human rights violations - sets precedent that nobody is above the law
Leaders who have been indicted by the UN include Mladic and Karadzic (Serbian generals who orchestrated the Srebrenica massacre), Jean Kambanda (former President of Rwanda who pled guilty to genocide) and Kang Kek Iew (a senior Khmer Rouge official involved in the Cambodian genocide)
Strengths of the special UN tribunals: pathway to long-term stability
Can be seen as a way for a country to come to terms with violence, punish those responsible and establish the foundations for future peace
The Special Court for Sierra Leone is considered to be successful at doing this. The trial convicted Charles Taylor for complicity in war crimes. The tribunal was successful in allowing a sense of closure for Sierra Leone and it is now a functioning multiparty democracy that has not seen serious violence since the end of the civil war
Weaknesses of the special UN tribunals: only symbolic justice
Can be seen as only providing symbolic justice by convicting only the leaders of figureheads of war crimes, with the majority of perpetrators having no consequences
e.g. the ICTR prosecuted 61 individuals (e.g. Jean Kambanda) for the genocide of almost a million Tutsi. However, most victims were killed in their own towns or villages, often by their neighbours. This means that thousands of perpetrators faced no consequences for their actions due to difficulties in gathering sufficient evidence
Weaknesses of special UN tribunals: requires state cooperation
Requires cooperation of the government of the state in which human rights abuses occurred. For a range of reasons (such as local support for the criminal or political deals), it is sometimes not possible to secure this cooperation.
The issue here is that some crimes can end up going unpunished by the tribunal
e.g. Mladic, the Serb general who oversaw the Srebrenica massacre, was not arrested until 2011 (for crimes he was indicted for in 1995) because he was sheltered by Serbian citizens who sympathised with his actions
e.g. more recently, the Special Tribunal for Lebanon convicted Salim Ayyash (a Hezbollah militant) of the killing of former Lebanese PM Hariri. However, he is not serving his sentence because the current leader of Hezbollah has refused to give him up to the authorities
When was the ICC set up
2002
When and why was the ECtHR set up?
Set up in 1959 with the purpose of promoting human rights and the rule of law in Europe. States and individuals can apply to the court in cases where they feel that their rights have been abused
Strengths of the ECtHR
Common European standards
Empowerment of individuals
Evolution of case law
Weaknesses of the ECtHR
Threat to state sovereignty
Lack of enforcement powers
Excessive caseload
Strengths of the ECtHR: common European standards
The Court establishes a common set of European standards based upon core values of liberal democracy and rights. This was especially important in maintaining a cohesiveness of political culture in Western Europe after WWII, and of strengthening general European identity since the end of the Cold War.
Although the ECtHR is not a body of the EU, the two institutions are closely interlinked. EU member states are all members of the Council of Europe and signatories to the ECtHR; the EU works on the general principle that its member states should adhere to the ECHR. Chapter 3 of the EU-UK Trade Agreement (2021) states that the UK must continue to be part of the ECtHR, or the EU will withdraw cooperation in law enforcement and security in response
Strengths of the ECtHR: empowerment of individuals
The ECtHR, unlike other institutions of global judicial procedure, allows individuals to bring cases against states (either those where they currently reside; or other states who are members of the Council of Europe). This empowers individuals to challenge abuses of state power and gives them the tools to defend their human rights. E.g.
Some landmark cases include:
Article 3 (Prohibition of torture): In Selmouni v France (1999), the applicant successfully argued that his treatment in police custody amounted to torture and led to formal compensation awarded
Article 6 (Right to a fair trial): In Salduz v Turkey (2008), the applicant successfully argued that his conviction for participating in a demonstration in support of the PKK, an illegal Kurdish political party, should be quashed since he was forced to admit guilt in custody without a lawyer present
Strengths of ECtHR: evolution of case law
The ECtHR operates as a ‘living instrument’ – that is, the rights laid out in the ECHR are interpreted by judges according to the contemporary context. This has allowed the ECtHR to defend human rights effectively against new and unforeseen threats.
S. and Marper v United Kingdom (2008) is a good example of this; the case concerned the retention by the authorities of DNA samples taken during criminal proceedings, which did not result in conviction. The applicants successfully argued that this was a violation of Article 8 (right to respect for private and family life) and the police were ordered to pay compensation of 42,000 euros per applicant and to begin destroying ‘innocent’ DNA samples
Taking DNA samples as part of police procedure was technologically inconceivable at the time of the ECHR’s drafting (1940s), demonstrating the Court’s flexibility in dealing with new challenges
Weaknesses of the ECtHR: threat to state sovereignty
A number of European jurists see the ECtHR as a threat to state sovereignty. Lord Hoffmann (UK) argued in 2009 that the ECtHR is “unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States.” Marc Bossuyt (President of the Belgian Constitutional Court) criticised the court in 2010 for being too ‘activist’ and re-interpreting the rights laid out in the ECHR as part of a ‘living instrument’, but in a way that was clearly not intended by the writers of the document. For example, Article 8 of the ECHR refers to a right to ‘family life’; the ECtHR interpreted this in Oliari v Italy (2015) to include same-sex marriage and imposed an obligation on member-states to provide legal recognition for same-sex marriage. Several European countries (predominantly in Eastern Europe) have been very opposed to this
Weaknesses of the ECtHR: lack of enforcement powers
The ECtHR lacks formal enforcement powers. Many states have ignored ECtHR verdicts and continued practises which the Court has judged to be a violation of the human rights stipulated in the ECHR. The number of non-implemented judgements has risen significantly over time, from 2,624 in 2001 to 9,944 at the end of 2016. The worst offenders for non-implementation are Italy, Russia, Turkey and Ukraine. Of these non-implemented judgements, around 3,200 concern human rights violations by security forces and poor conditions of imprisonment. Some other specific examples of note include:
Hirst v UK (2005): The ECtHR ruled that prisoners should have the right to vote. The UK has not implemented this
Fedotova v Russia (2011): The ECtHR ruled that Russian laws banning children from being exposed to information about homosexuality violated freedom of speech. Russia has retained these discriminatory laws
Weaknesses of ECtHR: excessive caseload
The caseload of the court expanded rapidly after the fall of the Soviet Union and the incorporation of Eastern European states into the Court’s jurisdiction. This is because there is generally less trust in court systems in former Communist states; and a greater prevalence of state violence against citizens. In 1999, only 8,400 cases were filed; by 2009, this number had risen to 57,000. Because the ECtHR’s capacity has not grown correspondingly, it faced an increasing backlog of pending cases (peaking at 151,600 in 2011).
This has since been reduced as a result of the 2010 Interlaken Declaration, which allows single judges to reject applications as inadmissible or bypassed, especially if they dealt with ‘repetitive’ issues (i.e. issues the Court had previously ruled on). Although this has reduced the backlog of pending cases, it has also meant that cases which were perfectly sound and could have been heard have been rejected because of a lack of capacity
Reasons why it is so difficult to enforce an international standard of human rights
State sovereignty
Different cultural traditions
Powerful states are unaccountable for their actions
Reasons why it is so difficult to enforce an international standard of human rights: state sovereignty
States are independent and autonomous and thus should determine the legality of everything within their state borders
As a result, international law is simply a form of soft law - nation-states remain sovereign and thus choose whether or not to accept external rulings
Undermines efforts of intl HR law
e.g. UK doesn’t allow prisoners to vote in spite of ECtHR ruling
Reasons why it is so difficult to enforce an international standard of human rights: different cultural traditions
No one standard of international rights
Cultural relativists argue that each culture determines the rights that people enjoy (condemns the concept of international standard of rights as Western imperialism)
e.g. 1993 Bangkok Declaration rejects the Western focus on individualism
Reasons why it is so difficult to enforce an international standard of human rights: powerful states are unaccountable for their actions
If an international standard of rights is adopted, then all states should be held legally accountable before that law - this is not the case
e.g. US has continually resisted calls from the UN to shut down Guantanamo Bay
e.g. China executes more people per year than the rest of the world combined - stated that foreign critics should ‘respect China’s judicial sovereignty’
Successful humanitarian interventions
The Balkans
East Timor
Sierra Leone
Cote d’Ivoire
Unsuccessful humanitarian interventions
Somalia
Darfur
Afghanistan
Iraq
Libya
Explain the Balkans as an example of successful humanitarian intervention
NATO launched ‘Operation Deliberate Force’ in 1995, establishing conditions for a lasting peace. Subdued by air power, the Bosnian Serbs agreed to a peace deal.
The operation’s success was due to the fact that, at its peak, 60,000 troops were deployed. Furthermore, UN mandate confirmed NATO’s operational legitimacy when it established a UN High Representative to ensure good governance in the region.
In Kosovo, a new civilian administration was established and as many as 50,000 troops were deployed to provide the necessary conditions for the restoration of peace.
Explain East Timor as an example of successful humanitarian intervention
A successful independence referendum in East Timor in 1999 provoked a violent backlash from pro-Indonesian militias.
Australia and the US announced their support for East Timor and a UN resolution swiftly followed authorising a multinational peacekeeping force.
This led to stable elections in 2001 and the independence of East Timor in 2003
Explain Sierra Leone as an example of successful humanitarian intervention
Sierra Leone encountered brutal civil war in the 1990s. In response, the Blair government sent a military force to evacuate foreign nationals from the area in May 2000. As this was successful, the British troops began to engage in operations against rebel groups.
This ultimately led to the success of the government of Sierra Leone over the rebels, creating peace and stability.
Explain Cote d’Ivoire as an example of successful humanitarian intervention
In 2011, President Gbagbo refused to accept defeat in the general election, which provoked a political crisis and subsequent civil war.
The UNSC mandated the destruction of Gbagbo’s military capability.
The legitimacy of this action was never in doubt, as it was unequivocal that Gbagbo had lost the election. The geography of Sierra Leone also meant that it was easily accessible for French intervention.
Explain Somalia as an example of unsuccessful humanitarian intervention
US troops in Somalia struggled, unable to distinguish between rival clans, militias and civilians. Lacking a legitimate government to defend, the US military was unable to successfully cooperate with forces within Somalia.
The US people lost their appetite for intervention, especially after footage of the aftermath of the Battle of Mogadishu was broadcasted. Lacking public support to continue fighting, President Clinton withdrew troops by 1994.
Explain Darfur as an example of unsuccessful humanitarian intervention
As a separatist movement grew in Darfur, the government sent in militia who pillaged and murdered through the region.
The UNSC (demonstrating that it had learned nothing from Rwanda) dithered about whether the atrocities amounted to genocide. China in particular was very hesitant to condemn Sudan for genocide as it had economic interests in the area.
In 2007, once most of the killing had already happened, a UN/AU peacekeeping force entered into Darfur.
However, intervention failed due to the size, remoteness and lack of basic infrastructure in Darfur
